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362 EXCISE LAW TIMES [ Vol. 373

to time. Vide Notification No. 4/2019-Cus. (Instruction), dated 11-10-2019, CBEC
has clarified thus :
“2.2 As regards Secondary and Higher Secondary Education (SHE) and
Social Welfare Surcharge (SWS), the SHE cess is levied under Section 126 of
Finance Act, 2007 as duties of Customs/Excise and SWS is levied under
Section 110 of Finance Act, 2018 as a duty of Customs. These provide that
provisions of Customs Act, 1962 and Central Excise Act, 1944 and rules and
regulations made thereunder including those relating to refunds, exemp-
tions etc. shall apply to these levies. Further, these cesses are factored in the
calculation of AIRs of duty drawback by the Drawback Committee. There-
fore, the elements of these cesses are required to be factored in Brand Rate
of duty drawback.
2.3 Regarding Clean Environment Cess (erstwhile Clean Energy Cess), Fi-
nance Act, 2010 vide Section 83(3) provided for levy and collection of Clean
Energy cess as a duty of Excise and vide Section 83(7) empowered Central
Government to declare any of the provisions of Central Excise Act, 1944
applicable to the cess. Government vide notification No. 2/2010-Clean En-
ergy Cess dated 22-6-2010 made, among others, the provisions related to re-
fund under Section 11B of Central Excise Act, 1944 applicable to the cess.
Vide instruction F. No. 354/72/2010-TRU, dated 24-6-2010 [2010 (255)
E.L.T. (T4)], the Board clarified that Clean Energy cess would also be levied
on import in the form of additional duty of Customs. Since the cess is col-
lected as additional duty under Section 3 of the Customs Tariff Act, the
provisions of Customs Act, 1962 related to drawback, refund etc. are appli-
cable to it in terms of Section 3(12) of the Customs Tariff Act, 1975. There-
fore, the incidence of Clean Environment cess (erstwhile Clean Energy cess)
is required to be included in the calculation of Brand Rate. It may be men-
tioned that Clean Energy cess was renamed as Clean Environment cess in
Finance Bill, 2016 and the latter has been subsumed under GST w.e.f. 1-7-
2017.
2.4 Stowage Excise duty : Stowage Excise duty is levied under Section 6 of
The Coal Mines (Conservation and Development) Act, 1974 as a duty of Ex-
cise and an equivalent duty of Customs is levied on imported coal under
Section 7 of the said Act. However, the Act does not make applicable any of
the provisions like refund, drawback etc. of Central Excise Act or Customs
Act to the aforesaid levies. Therefore, levies cannot be considered for inclu-
sion in the calculation of duty drawback on any export goods.
3. Field formations are requested to deal with the pending applications for
fixation of Brand Rate if duty drawback accordingly.”
14. Thus, the CBEC has clarified that insofar as those cesses levied un-
der various Finance Acts which provide that provisions of the Customs Act, 1962
and the Central Excise Act, 1944 and rules and regulations made thereunder in-
cluding those relating to refunds, exemptions etc. shall apply to these levies; the
elements of these cesses are required to be factored in brand rate of duty draw-
back. In the case of Stowage Excise Duty, wherein, the Act does not make appli-
cable any of the provisions like refund, drawback etc. of Central Excise Act or
Customs Act to the aforesaid levies. The CBEC has clarified that, these levies
cannot be considered for inclusion in the calculation of duty drawback on any
export goods.
15. Thus, the CBEC has drawn a distinction between those levies which
are subject to the provisions of the Customs and Central Excise Act and rules and

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